Sakamma and Others vs Manu Dayakar and Others

B. Veerappa, J.

The appellants in MFA.24528/13 are the wife and daughter of the deceased. They have filed the appeal seeking enhancement of compensation by modifying the judgment and award dated 30.9.2013 passed in MVC.344/12 granting compensation of Rs. 7,65,000/- with interest at 6% p.a. from the date of petition.

MFA.24980/13 is filed by the Insurance Company seeking to set aside the judgment and award dated 30.9.13 passed in MVC.344/12 and in the alternative to reduce the compensation awarded.

The facts of the case briefly stated, are that on 17.3.2012 at about 9.00 p.m. deceased Mahadevagouda S/o. Revanagouda Gyanagoudra was returning to Chalagen from Ranebennur on his Hero Honda motor cycle bearing No. KA.27/K-6864 after completion of his work. When he was proceeding near KEB Grid Cross at P.B. Road to enter Chalagen, at that time the driver of Honda City Car bearing No. KA.18/N.3004, driven in a rash and negligent manner with high speed coming from Hanhar side dashed against the motorcycle on which the deceased was going causing serious accident. Due to the heavy impact of the accident, the rider of the motorcycle fell down from the motorcycle and died on the spot due to fatal injuries. Immediately, the dead body was shifted to the government hospital Ranebennur, where his postmortem was conducted and thereafter the dead body was taken by the claimants to their native place in a hired taxi and performed funeral ceremonies.

It was also contended that prior to the accident, deceased was hail and healthy and was doing agricultural work and was also carrying on Poultry Farming work after retirement from RAMCO Industries, Karur. He used to earn Rs. 25,000/- per month and the claimants/petitioners were completely depending upon the income of the deceased. Due to untimely death of the deceased, the claimants were suffering mental pain and agony and financial loss.

The 1st claimant is the wife of the deceased. She has lost her life partner in her middle age. Claimant No. 2 is the daughter of deceased and she has lost the love and affection and support of her father. Thus, the claimants sought for compensation as prayed for in the claim petition.

Upon issue of notices by the Claims Tribunal, respondents 1 and 2 appeared and filed objections, contending that the claim petition filed by claimants is false and frivolous and not maintainable. They also disputed the age, occupation, income of the deceased and also denied the death of the deceased in toto and further stated that the compensation claimed was highly excessive, exorbitant without any legal basis and also urged that the driver of the Honda City Car bearing No. KA 18/N-3004 was not having valid/effective driving license at the time of the accident. It was also urged that owner of the said vehicle willfully violated the policy conditions by entrusting the car to such a driver who had no valid and effective driving license at the time of accident and further admitted that the Honda City car was insured with the 2nd respondent-Insurer and policy was in force as on the date of accident. Accordingly, respondent-insurance company prayed for dismissal of the claim petition.

Based on the pleadings, the Tribunal framed following issues:

"1. Whether the petitioners prove that on 17.3.2012 at about 9 p.m. on account of actionable negligence on the part of driver of Honda City Car No. KA.18/N-3004, near KEB grid cross, PB road, Chalagen, the accident occurred and in the said accident Mahadevappa Revanagouda Gyanagoudra sustained fatal injuries and died on the spot?

Whether petitioner is entitled for compensation? If so, at what rate and from whom?

What order or award?"

In order to establish their case, the 1st claimant examined herself as PW.1 and got marked in all 22 documents as Ex. P.1 to Ex. P.22. The 2nd respondent/Insurance Company examined its official as R.W.1 and got marked one document as Ex. R1.

After considering the entire material evidence on record, both oral and documentary, the Tribunal has passed the impugned order and has recorded a finding that the claimants proved that the accident occurred due to the actionable negligence on the part of the driver of Honda City Car and the claimants were entitled to compensation of Rs. 7,65,000/- with interest at 6% p.a.

Not being satisfied with the quantum of compensation, the claimants have filed MFA.24528/13 seeking enhancement of compensation. The Insurance Compensation has filed MFA.24980/13 for reduction of compensation, by modifying the impugned judgment and award.

We have heard the learned Counsel for the parties to the lis.

Sri. G.S. Hulamani, learned Counsel appearing for appellants, has contended that, having recorded adverse finding against the Insurance Company, the Tribunal has granted compensation of Rs. 7,65,000/- which is inadequate.

Admittedly, the deceased was a Government employee retired from service. As per Ex. P.12 the deceased was getting pension of Rs. 1619/- per month. The material document Ex. P.9 is a loan sanctioned letter by KVG Bank, Chalagen in favour of the deceased. It clearly discloses that the deceased had started poultry farming in his agricultural land. Ex. P.14 and P.15 are record of rights in respect of agricultural lands held by the deceased, Ex. P.10 is the letter of RAMCO Industnes, Karur issued to the Regional Provident Fund Commissioner, PF Sub-Regional Office, Hubli. Ex. P.11 is a letter of Employees PF Organization, Hubli, addressed to the deceased that deceased was entitled for pension of Rs. 1,619/- with effect from 13.9.2010. Ex. P.18 to 22 are the bills showing supply of chickens to Venkateshwara Hatcheries Pvt. Ltd. All these documents indicate that the deceased was earning more than Rs. 25,000/- per month and the said aspect has not been allegedly considered. Therefore, he sought for further enhancement of compensation.

Per contra, Sri. M.Y. Katagi, learned Counsel for respondent No. 2 Insurance Company, who has also filed appeal in MFA.24980/13 has contended, that the deceased was a Government employee and he was getting only the pension of Rs. 1,619/- per month. But, the Tribunal wrongly assessed the income of the deceased at 10,000/- p.m. without any basis, thereby awarding exorbitant compensation of Rs. 7,65,000/- under the head of Loss of dependency and the same is liable to be set aside. It was also contended that since the claim petition is filed by the wife and major daughter, deduction towards personal expenses of the deceased ought to have been at 50% instead of 1/3rd. It is further contended that the Tribunal has wrongly taken the age of the deceased as 60 years based on the xerox of the document. The Tribunal ought to have taken into consideration the PM Report which disclosed the age of the deceased as 63 years. Therefore, he has sought to set-aside the impugned judgment and award passed by the Tribunal.

We have given our thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the records. The questions that arise for our consideration are:

"(i) Whether the appellants have made out a case for enhancement of compensation awarded by the Tribunal?

(ii) Whether the Insurance Company has made out a case for reduction of compensation?"

The admitted facts as established show that the deceased died in a road traffic accident on 17.3.12 at 9 p.m. due to actionable negligence on the part of the driver of the Honda City Car bearing No. KA.18/N.30004 and the said car was insured with the 2nd respondent Insurance Company as on the date of accident. The Tribunal has recorded specific finding that the accident occurred due to the rash and negligent driving on the part of the driver of Honda City car and the said finding is not at all challenged by the Insurance Company, except filing the appeal for reduction of quantum of compensation. PW.1 who is the wife of the deceased, has specifically stated on oath that the deceased was a retired employee and was getting pension of Rs. 1,619/- per month. Apart from the pension, after retirement he was also doing agricultural and poultry farming work and out of the said avocation he was allegedly earning Rs. 25000/- per month.

In order to prove the income of the deceased, claimants have produced Ex. P.8, the letter issued by Venkateshwara Hatcheries Pvt. Ltd. to the effect that the deceased had approached the said agency for establishing a commercial broilers poultry farm under the contract growing "Commercial Broilers Farming" scheme with an initial capacity of 5150 birds and the Company had also consented in principle for the same. Ex. P.9 is the letter dated 25.6.2010 issued by Karnataka Vikas Grameena Bank sanctioning the loan of Rs. 4 lakhs in favour of deceased and his son for establishment of poultry farm.. Ex. P:11 is the PF commissioner''s letter for sanctioning pension of Rs. 1,619/-to the deceased. The date of birth of the deceased is shown as 13.9.1952 as per Ex. P.11. Ex. P.12 pertains to the pension particulars. Ex. P.13 is the letter of PF Commissioner to pay the pension to the deceased. Ex. P.14 and Ex. P.15 are RTC extracts to show that the deceased was owning 4 acres 38 guntas of land in Sy. No. 37/x-3 of Chalagen village and Column-9 of said RTC discloses that the deceased used to grow tordal, maize and mulberry crops. Ex. P.15-RTC extract of Sy. No. 290/3B measuring 1 acre 22 guntas is standing in the name of deceased and column-9 of said RTC shows that deceased was growing mulberry crops. Ex. P.16 and P.17 are the passbooks issued by the KVG Bank and SBI Ranebennur Branch which indicates the balance outstanding in the account of deceased. Ex. P.18 to Ex. P.22 are the poultry bills issued by M/s. Venkateshwara Hatcheries Pvt. Ltd. in favour of the deceased on 17.3.11, 30.5.11, 27.9.11, 5.12.11, 17.2.12, which clearly depicts the payment of amount received by the deceased for supply of chicks to the Company, i.e. Rs. 53,565/-, Rs. 60,678/-, Rs. 73,348/-, Rs. 57,403/-, Rs. 69,765/- respectively, after deduction of TDS amount.

Admittedly, the respondents have not produced any contra material or documentary evidence except producing the policy Ex. R1 and the statement made by the RW.1 (Insurance Company) and has not elicited anything contrary.

Considering the entire material on record, we are of the view that the income of the deceased taken by the Tribunal at Rs. 10,000/- per month is on lower side and in the facts and circumstances of the case it has to be taken at Rs. 12,000/- per month and compensation has to be re-determined. Therefore, we hold that the appellants in MFA.24528/13 have made out a case for enhancement. Consequently, the appeal filed by the Insurance Company in MFA.24980/13 is liable to be dismissed.

Accordingly, on re-determination of compensation under the head Loss of Dependency it works out to Rs. 8,64,000/-. That is, 12,000 x 12 = Rs. 1,44,000/- and after deduction of 1/3rd it works out to Rs. 96,000/- (1,44,000-48,000=96,000/-). Age of the deceased is found to be 60 years having regard to Ex. P.11 letter issued by the PF Commissioner, which shows the date of birth of the petitioner as 13.09.1952. Taking into consideration the law laid down by the Supreme Court in the case of Sarala Varma, the multiplier applicable would be 9. Thus, the loss of dependency works to Rs. 8,64,000/-.

Considering the entire material on record, we re-assess the compensation under different heads as under:

The appellants are entitled to total compensation of Rs. 9,09,000/- with 9% interest from the date of petition till its realization payable by respondents 1 and 2 jointly and severally. Two months time is granted to respondent-2 Insurance Company to deposit the entire compensation amount as awarded by this Court with accrued interest thereon. Out of the compensation awarded, the 1st appellant is entitled to 60% and 2nd plaintiff is entitled to 40%.

It is also made clear that, upon deposit of the entire compensation amount by the Insurance Company, 50% of the share of compensation awarded to each appellants 1 and 2 as above, shall be deposited in any nationalized bank of their choice in fixed deposit for a period of 5 years with liberty to withdraw the interest accrued thereon periodically.

Accordingly, MFA.24528/13 is allowed in-part. The impugned judgment and award is modified by enhancing the compensation. The appellants/claimants are entitled to total compensation of Rs. 9,09,000/- with 9% interest from the date of petition till its realisation.

The appeal filed by Insurance Company in MFA.24980/2013 is dismissed.